Plaintiff
Carmela Correia (“Plaintiff”), as the personal
representative of the estate of Paul A. Correia (“Mr.
Correia”), brings this action, under 42 U.S.C. §
1983 and Massachusetts state law, against seven police
officers in their official and individual capacities (the
“Defendant Officers”), [1] the Town of Westport
(“Westport”), and the Westport Police Department
(“WPD”) (collectively, “Defendants”),
alleging federal and state constitutional violations,
intentional torts, gross negligence, and negligence. [ECF No.
1, Ex. A (“Compl.”)]. In August 2016, Plaintiff
filed the complaint in Massachusetts state court. On December
12, 2016, the Defendants filed a notice of removal in federal
court. [ECF No. 1].

Currently
before this Court are Defendants' Rule 12(b)(6) motion to
dismiss for failure to state a claim as to all Defendants and
Rule 12(b)(5) motion for failure to effectuate proper service
as to Officer Souza. [ECF No. 7]. Plaintiff opposes the
motion. [ECF No. 15]. For the reasons state below, the motion
is GRANTED IN PART AND DENIED IN PART pursuant to
Federal Rule of Civil Procedure 12(b)(6).[2]

I.
FACTUAL ALLEGATIONS

On
August 20, 2013, Mr. Correia, a forty-five year old mentally
disabled man, was the operator of a vehicle traveling
northbound on Gifford Road in Westport, Massachusetts. Compl.
¶ 15. Mr. Correia crossed a double yellow line, passing
a police cruiser and two other vehicles while proceeding
through a stop sign. Id. ¶ 16. Mr. Correia then
made a right turn onto a road heading westbound. Id.

Observing
this, Officer Souza turned on her emergency lights and siren
and pursued Mr. Correia. Id. ¶ 17. Plaintiff
claims that Officer Souza continued her pursuit despite being
ordered to cease due to heavy traffic and the time of day.
Id. ¶ 18. Mr. Correia subsequently struck at
least one vehicle, and eventually came to a stop after
striking a guardrail. Id. ¶ 19. Officer Souza
joined Officer Bell[3] where Mr. Correia's car came to rest.
Id ¶ 20. With firearms drawn, Officers Bell and
Souza instructed Mr. Correia to show his hands. Id
¶ 21. Mr. Correia did not respond to any verbal
instruction. Id ¶ 22. Officer Beaulieu arrived
at the scene, threatened to use his taser on Mr. Correia if
he did not step out of the vehicle, and then used his taser
on Mr. Correia multiple times. Id ¶ ¶ 23,
24.

Thereafter,
Officers Mello, McCarthy, Cestodio, and Police Chief
Pelletier arrived at the scene. Id ¶ 25. The
officers[4] physically removed Mr. Correia from his
vehicle and he was transported by ambulance to Charlton
Memorial Hospital (“Charlton”), where he was
found to have suffered a nose fracture and related
contusions. Id ¶¶ 26-28. Charlton also
noted that Mr. Correia was “hyperverbal, ” with
“flight of ideas and grandiose speech.”
Id ¶ 29. Mr. Correia was transferred to
Westport Police Station for booking and eventually to Bristol
County House of Corrections.[5]Id ¶ 30.

II.
CLAIMS FOR RELIEF

The
complaint contains nine claims for relief, and names the
Defendant Officers in their individual capacities in Count I
and in both their individual and official capacities in the
remaining counts. Id ¶¶ 7-13, 32.

• Count I alleges a violation of § 11I of the
Massachusetts Civil Rights Act (“MCRA”) against
the Defendant Officers. Id ¶¶ 31-33.

On a
motion to dismiss for failure to state a claim pursuant to
Rule 12(b)(6), the Court must accept as true all well-pleaded
facts, analyze those facts in the light most hospitable to
the plaintiff's theory, and draw all reasonable
inferences from those facts in favor of the plaintiff.
U.S. ex rel. Hutcheson v. Blackstone Med., Inc., 647
F.3d 377, 383 (1st Cir. 2011). Although detailed factual
allegations are not required, a pleading must set forth
“more than labels and conclusions.” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007). A
“formulaic recitation of the elements of a cause of
action” is not enough. Id. To avoid dismissal,
a complaint must set forth “factual allegations, either
direct or inferential, respecting each material element
necessary to sustain recovery under some actionable legal
theory.” Gagliardi v. Sullivan, 513 F.3d 301,
305 (1st Cir. 2008) (internal quotations and citation
omitted). Further, the facts alleged, when taken together,
must be sufficient to “state a claim to relief that is
plausible on its face.” A.G. ex rel. Maddox v.
Elsevier, Inc., 732 F.3d 77, 80 (1st Cir. 2013) (quoting
Twombly, 550 U.S. at 570).

The
First Circuit has noted that “[t]he plausibility
standard invites a two-step pavane.” Id.
“At the first step, the court ‘must separate the
complaint's factual allegations (which must be accepted
as true) from its conclusory legal allegations (which need
not be credited).'” Id. (quoting
Morales-Cruz v. Univ. of P.R., 676 F.3d 220, 224
(1st Cir. 2012)). “At the second step, the court must
determine whether the remaining factual content allows a
reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (internal quotations
and citation omitted). “The make-or-break standard . .
. is that the combined allegations, taken as true, must state
a plausible, not a merely conceivable, case for
relief.” Sepulveda-Villarini v. Dep't of Educ.
of Puerto Rico, 628 F.3d 25, 29 (1st Cir. 2010).
“Although evaluating the plausibility of a legal claim
requires the reviewing court to draw on its judicial
experience and common sense, the court may not disregard
properly pled factual allegations, even if it strikes a savvy
judge that actual proof of those facts is improbable.”
Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12
(1st Cir. 2011) (internal quotations and citation omitted).

IV.
DISCUSSION

A.
The § 1983 Claim

i.
The § 1983 Claim Against the Defendant Officers In Their
Individual Capacities

Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State or Territory or
the District of Columbia, subjects, or causes to be
subjected, any citizen of the United States or other person
within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution
and laws, shall be liable to the party injured in an action
at law, suit in equity, or other proper proceeding for
redress, except that in any action brought against a judicial
officer for an act or omission taken in such officer's
judicial capacity . . . .

42 U.S.C. § 1983. To succeed under § 1983, a
plaintiff must show that “the challenged conduct [is]
attributable to a person acting under color of state
law” and that “the conduct . . . worked a denial
of rights secured by the Constitution or by federal
law.” Soto v. Flores, 103 F.3d 1056, 1061 (1st
Cir. 1997). With respect to the first prong, Defendants do
not contest that Plaintiff adequately alleged state action,
and the Court thus turns to the second prong.

With
respect to the second prong, Plaintiff asserts that the
Defendant Officers violated Mr. Correia's Eighth and
Fourteenth Amendment rights by using excessive force. Compl.
¶ 67. Because Mr. Correia alleges harm during an
investigatory stop and arrest, however, his excessive force
claim is properly analyzed under the Fourth Amendment
standard, rather than the Eighth or Fourteenth.
Graham, 490 U.S. at 394 (“Where . . . the
excessive force claim arises in the context of an arrest or
investigatory stop of a free citizen, it is most properly
characterized as one invoking the protections of the Fourth
Amendment, which guarantees citizens the right ‘to be
secure in their persons . . . against unreasonable . . .
seizures' of the person.” (quoting U.S. Const.
amend IV)); Miranda-Rivera v. Toledo-Davila, 813
F.3d 64, 71 (1st Cir. 2016) (applying Fourth Amendment
standard, rather than Fourteenth Amendment, where excessive
force allegedly occurred while plaintiff was transported to a
police station and then a jail cell). Reviewing the claim
under the Fourth Amendment, the § 1983 excessive force
claim must be dismissed as against all the Defendant Officers
except Officer Beaulieu. See Johnson v. City of Shelby,
Miss., 135 S.Ct. 346, 346 (2014) (“Federal
pleading rules call for ‘a short and plain statement of
the claim showing that the pleader is entitled to relief,
' they do not countenance dismissal of a complaint for
imperfect statement of the legal theory supporting the claim
asserted.” (quoting Fed. Rule Civ. Proc. 8(a)(2)).

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;To
prevail on an excessive force claim under the Fourth
Amendment, a Plaintiff must show that &ldquo;the defendant
employed force that was unreasonable under all the
circumstances.&rdquo; Correia v. Feeney, 620 F.3d 9,
12 (1st Cir. 2010) (quoting Morelli v. Webster, 552
F.3d 12, 23 (1st Cir. 2009)). This standard requires an
inquiry into the circumstances of the particular case to
determine if a reasonable officer would have thought the
particular use of force was reasonable, including (1) the
severity of the crime at issue, (2) whether the suspect posed
an immediate threat to the safety of officers or others, and
(3) whether the suspect was actively resisting arrest or
attempting to evade arrest by flight. Graham, 490
U.S. at 387, 396. It has long been recognized that police
officers have a right to use some degree of physical coercion
or threat of such coercion to make an arrest.
Graham, 490 U.S. at 396; Terry v. Ohio, 392
U.S. 1, 22-27 (1968). Courts apply an objective
reasonableness standard to ...

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